1. What benefits do you get from a VA Disability claim?
You can get several major categories of VA benefits when you file a VA Disability claim.
One category is the “Non-Service Connected Pension,” available to extremely low-income veterans with disabilities.
Another category is education benefits.
A third category is burial benefits.
A fourth category is health care benefits.
And the category that is the focus of this post – and the Veterans Law Blog – is disability compensation for diseases, conditions, and disabilities that originated in military service.
(Note that you do not need to show that military service CAUSED the disability – Congress long ago recognized that Veterans should get benefits even if a disease or disability that wasn’t caused BY service has its origins IN service.
In addition to the basic rates of compensation mentioned above, you can get additional compensation for different scenarios you raise in your VA Disability claim.
Here are just a few:
A veteran with specific percentage ratings for multiple disabilities can be eligible for additional Special Monthly Compensation. This Special Monthly Compensation is also available to Veterans with specific disabilities that limit the use of, or that resulted in the loss of, their extremities, their reproductive organs, and organs of special sense (vision, etc.).
It used to be that you could file a VA Disability claim for a service-connected condition, disease, or disability just by writing your claim on a piece of paper – a famous anecdote that floats around the Veterans’ community is the Veteran who wrote his claim on a square of toilet paper while in prison.
This is no longer the case: filing a VA Disability claim has become increasingly complicated, like many other things in this world.
Generally, filing a VA Disability claim requires a series of actions:
The CAVC can do any of the following: affirm (uphold) a BVA Decision, reverse (reject) a BVA decision, vacate (erase) a BVA decision, and remand (send a decision back to the BVA for the repair of legal errors. Depending on the case, it can also combine two or more relief types.
Step 6: Judicial Review phase
Suppose you are not satisfied with your CAVC Decision. In that case, you have a limited opportunity for judicial review at the Federal Circuit Court of Appeals (Fed Circuit) and then the Supreme Court of the United States. The Fed Circuit only has the ability to decide PURE questions of law… I’d be willing to bet that 80-90% of Fed Circuit decisions in Board cases are “Rule 36’s”….decisions without a written opinion, typically because the Court does not have jurisdiction over the appeal.
Getting review at the Supreme Court is much harder, and appeals to both courts can be costly filing fees alone at the Federal Circuit cost $500, and the cost of copying and filing the brief and the record of proceedings below costs between $2,000 and $5,000. Hence, attorneys and Veterans tend to be more conservative about appeals to these courts.
If you are filing a claim for increased compensation, you want to file the claim for increased rating as soon as you believe your condition is worsening.
4. Where do I file a VA Disability claim?
Technically, your VA Disability claim is filed with the VA Regional Office for your geographic area.
However, you can file your VA Disability claim online through the eBenefits portal for Veterans, or, if you want to be sure that you create a paper trail for your claim to make sure the VA does not lose it, you can file it by sending it to the Evidence Intake Center (also known as the VA’s EIC in Janesville, Wisconsin).
5. Who Can Help Me with a VA Disability Claim?
Anyone that you trust can help you with a VA Disability claim.
So, while an illegal immigrant can hire an attorney to fight deportation whenever they can afford it, Veterans who served our country in uniform are not legally allowed to pay for an attorney or experienced professional accredited agent’s help until the VA denies them a benefit.
While a criminal charged with a crime has a constitutional right to an attorney, veterans who fought and bled to preserve the Constitution are prohibited from exercising their right to hire and pay an attorney or experienced professional until the VA screws them over first.
Organizations like the Paralyzed Veterans Association (PVA) and the Vietnam Veterans of America (VVA) get consistently high marks for the work they do for their members.
6. How Long Does a VA Disability Claim Take?
The amount of time that it takes for the VA to decide on a VA Disability claim can vary greatly and depends on a lot of variables: how difficult your claim is, how many conditions you include in the VA Disability claim, how well your claim is prepared, whether your claim is a Fully Developed Claim or not, how big your VA Regional Office is, etc.
Here are some general rules:
If you click here, the VA says that time is 114 days (ish) for a Fully Developed Claim and 121 days (ish) for a non-FDC claim. In 10 years of representing hundreds of Veterans and talking with tens of thousands more, I’ve never met a Veteran that got a decision in 125 or fewer days. I’ve met a couple that had a decision within 3-6 months. Most Veterans should plan on the process taking about 12-18 months, from file to decision. And that’s not counting the appeals.
7. How Do I Check the Status of My VA Disability Claim?
That, right there, is the million-dollar question.
The VA will tell you to call their VA toll-free number 1-800-827-1000 to get the status. Veterans that use this approach find that they can enjoy their favorite hobby while waiting to talk to someone at the VA: some Veterans relax and enjoy 2-3 hours of hold “muzak,” others read the week’s newspapers or a few magazines, and others have actually written a book while waiting on hold. If you are among the patient and lucky few that get through to a human being on the 1-800 line, here are some tips and pointers on how to get more value and information out of the call.
The VA also suggests that you check your status on eBenefits. Be forewarned, though – eBenefits is a glitchy and inaccurate tool. For example, if you log into my eBenefits account, it shows that the VA held a hearing on my VA Disability Claim 2 years before I filed it. That’s a true story, folks. Now that is efficiency – maybe the VA will start a new pilot program: the pre-claim denial process.
Be careful what you see on eBenefits it’s not always your claim status, it’s not always accurate, and it’s rarely up to date.
8. How Are Benefits in a VA Disability Claim Calculated?
I wish I could tell you that the VA simply added up your disability ratings from individual conditions to reach your total disability rating and paid you according to that rating.
In most VA disability claims, the effective date will be the LATER of the date you filed your claim and the date the entitlement arose. Click here to learn more about what that means.
If you file your VA disability claim within one year of leaving service, your effective date will typically be your date of separation from military service.
Claims for Increased compensation rates follow the general effective date rule, except that if you can show that the worsening of your condition started to occur BEFORE you filed your claim, you can get up to 1 year earlier.
In some cases, if the law changes while you are trying to prove a claim or after you’ve been denied a claim, and your claim is granted pursuant to that change in the law, that makes it easier for you to win (in other words, the change in the law is a “claim liberalizing rule”) you may be able to get up to 1 year prior to the date of your claim as your effective date.
Suppose you submit New and Material evidence within one year of the date your rating decision denied your VA Disability claim. In that case, your claim is “open and pending” until the VA issues a new ratings decision. If your benefits are granted based on that new and material evidence, your effective date could be the original date of your claim. This is a dangerous path to take, though, because if the VA denies your claim because the evidence wasn’t New and Material, then you may have lost your original effective date if you did not file an appeal within that same year after the VA Ratings Decision.
If a medical condition substantially improves, the VA can propose to reduce your disability compensation benefits to different levels. The rules that they have to follow to do this can differ depending on certain factors, but here are a few considerations; you can click here to learn more about how the VA tries to pick Veterans’ pockets by reducing benefits and get an idea how to stop it.
The VA can only reduce “continuous ratings” (those that have been in effect for 20 years or more) after showing that they were awarded based on actual fraud by the Veteran.
There are three types of ratings in VA Disability claims that are considered “protected” ratings, which the VA cannot reduce without showing first a “substantial improvement” in your medical condition.
Suppose a VA Disability rating is considered “unprotected.” In that case, the VA can reduce it, but they have to send you notice of their intent to respond, give you an opportunity to respond and submit evidence and, if you request it, provide a hearing. The timelines on this type of reduction are pretty friendly to the VA and pretty hard for the person filing the VA Disability claim to understand, no less follow, so be ready to move quickly and do plenty of legwork to understand what is happening and how to stop it.
If you are incarcerated for more than 60 days, on the 61st day, the VA can reduce your VA Disability compensation to no less than 10% and must reinstate it after your release from jail. Click here to learn more about each time of rating and how long they stay in effect.
12. Are VA Disability Benefits Subject to Child Support?
In every state I am aware of, VA Disability benefits are considered income for calculating child support.
Child support laws differ in each state, so there may be nuances from state to state how much is subject to child support, particularly when military retirement payments offset a portion of your VA Disability benefits. The best thing to do is get out ahead of this situation by talking to a local family law attorney and making sure you do right by your kids, state law, and federal law.
If you need a referral to a family law attorney in Texas or Arkansas, fill out a support ticket. I know a lot of family law attorneys in both states and may be able to give you a couple of referrals.
13. Are Benefits From My VA Disability Compensation Claim Taxable?
At least not under Federal law. Amounts paid to Veterans or their families for education, training, subsistence allowances, clothing allowances, disability compensation, and/or pension payments are not taxable by the Feds.
As to whether these benefits are taxable at the State level, consult your state’s income tax agency, as the answer will vary state by state.
14. What Conditions Are Most Common in a VA Disability Claim?
If you don’t have the stomach to read MORE VA propaganda – and honestly, who can blame you – here are the Top 10 conditions that the VA reports as being part of most original VA Disability Claims ((click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)
Here are some other conditions that I see very frequently in many a VA Disability Claim (click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)
VA TL 10-07 below Rescinds VA TL 07-01 | September 14, 2010 | SUBJ: Adjudication of Claims for Total Disability Based on Individual Unemployability (TDIU) PURPOSE
Our purpose in issuing this training letter is to revise and clarify our policies and procedures concerning the adjudication of TDIU decisions in order to restore the original intention of the TDIU evaluation – accurately, timely, and adequately compensating our Veterans who are unable to be gainfully employed due to service-connected disabilities. BACKGROUND
VA has a longstanding and well-established policy of granting total disability ratings to Veterans who, due to service-connected disability(ies), are unable to secure and maintain substantially gainful employment even if a Veteran’s combined disability evaluation does not result in a total schedular evaluation. The provisions of 38 C.F.R. § 4.16(a) provide the minimal schedular standards for TDIU consideration: if there is one disability, this disability shall be ratable at 60 percent or more; and, if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more and additional disability to bring the combined rating to 70 percent or more. Alternatively, if these schedular requirements are not met, but the evidence shows the Veteran is unemployable due to service-connected disabilities, 38 C.F.R. § 4.16(b) authorizes VA to grant a TDIU evaluation on an extra-schedular basis upon approval by the Director, Compensation and Pension Service.
In recent years, several factors, including internal inconsistencies in developing and adjudicating TDIU decisions and changing policies and procedures issued in response to court decisions addressing the TDIU issue, have led to a conclusion that the TDIU issue requires new guidance. A review of TDIU grants has also revealed that the benefit is, at times, granted on a quasi-automatic basis when the Veteran attains a certain age and/or schedular rating. This practice is not supported by VA regulation or policy. History of TDIU Evaluations
The regulatory history does not provide an explanation for the creation of TDIU ratings. VA’s 1933 Schedule for Rating Disabilities (VASRD) provided the first definition of total disability as existing “when there is (or are) present any impairment (or impairments) of mind or body which is (or are) sufficient to render it impossible for the average person to follow a substantially gainful occupation.” A 1934 revision of the VASRD provided the first authorization of a TDIU rating, sanctioned total disability ratings “without regard to the specific provisions of the rating schedule if a Veteran with disabilities is unable to secure or follow a substantially gainful occupation as a result of his disabilities.”
In 1941, the Administrator of Veterans Affairs issued an extension of the 1933 VASRD, which provided that total disability ratings may be assigned without regard to the specific provisions of the rating schedule when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of his/her disabilities. The 1941 regulation also provided the current TDIU rating criteria.
The 1945 Schedule for Rating Disabilities established that age may not be considered a factor in evaluating service-connected disability, and that service-connected unemployability could not be based on advancing age or additional (nonservice-connected) disability. (Paragraph 16, General Policy in Rating Disability)
38 C.F.R. § 4.16(a) became effective in March 1963. The regulation was amended in September 1975 to include subsection (b), which authorized a TDIU evaluation on an extra-schedular basis. In March 1989, subsection (c) was added to § 4.16, which directed that if a Veteran was rated 70 percent for a mental disorder that precluded gainful employment, 38 C.F.R. § 4.16(a) was not for application and such Veteran was to be assigned a 100-percent schedular evaluation.
In August 1990, 38 C.F.R. § 4.16(a) was revised to include language that marginal employment would not be considered gainful employment and also provided a definition of what constituted marginal employment. Following VA’s adoption of the fourth edition of the Diagnostic and Statistical Manual for Mental Disorders, 38 C.F.R. § 4.16(c) was rescinded in October 1996. The provision was now viewed as being extraneous, as a Veteran with a service-connected mental disorder would not be disadvantaged with the application of the other subsections of 38 C.F.R. § 4.16. Case Law
The Court of Appeals for Veterans Claims (CAVC) and the Court of Appeals for the Federal Circuit (Federal Circuit) have issued many precedent opinions that have substantively affected Veterans’ rights associated with TDIU evaluations, as well as how VA adjudicates the issue. Below are some of the most pertinent holdings in decisions concerning TDIU from both courts. Moore v. Derwinski, 1 Vet.App. 83 (1991) The term “substantially gainful occupation” refers to, at a minimum, the ability to earn a living wage. Wood (Clarence) v. Derwinski, 1 Vet.App. 367 (1991) An application for unemployability compensation is an application for increased compensation within the meaning of 38
U.S.C. § 5110(b)(2). Blackburn v. Brown, 4 Vet.App. 395 (1993) Entitlement to TDIU compensation must be established solely on the basis of impairment arising from service-connected disabilities. Hattlestad v. Brown, 5 Vet.App. 524 (1993) In determining entitlement to TDIU evaluations, a clear explanation requires analysis of the current degree of unemployability attributable to the service-connected condition as compared to the degree of unemployability attributable to the non-service connected condition. Norris v. West, 12 Vet.App. 413 (1999) When VA is considering a rating increase claim from a claimant whose schedular rating meets the minimum criteria of § 4.16(a) and there is evidence of current service-connected unemployability in the claims file or under VA control, evaluation of that rating increase must also include an evaluation of a reasonably raised claim for TDIU. Faust v. West, 13 Vet.App. 342 (2000) In determining entitlement to a TDIU rating, VA must consider the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. A determination of whether a person is capable of engaging in a substantially gainful occupation must consider both that person’s abilities and employment history. Hurd v. West, 13 Vet.App. 449 (2000) A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Roberson v. Principi, 251 F.3d 1378 (2001) Once a Veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to TDIU. Bradley v. Peake, 22 Vet.App. 280 (2008) The provisions of 38 U.S.C. § 1114(s) do not limit a “service-connected disability rated as total” to only a schedular 100-percent rating. A TDIU rating may serve as the “total” service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC at the (s) rate. Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) A claim for a total disability evaluation due to individual unemployability (TDIU) is implicitly raised whenever a pro se Veteran (unrepresented), who presents cogent evidence of unemployability, seeks to obtain a higher disability rating, regardless of whether the Veteran specifically states that he is seeking TDIU benefits. Rice v. Shinseki, 22 Vet.App. 447 (2009) A request for a total disability evaluation on the basis of individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation, if entitlement to the disability upon which TDIU is based has already been found to be service connected. There is no freestanding TDIU claim. Processing
VA has historically handled TDIU claims as freestanding claims that were adjudicated separately from other compensation issues in its decisions. However, as a result of the Rice decision, a request for TDIU, whether specifically raised by the Veteran or reasonably raised by the evidence of record, is no longer to be considered as a separate claim but will be adjudicated as part of the initial disability rating or as part of a claim for increased compensation.
The current Veterans Claims Assistance Act (VCAA) notice letters used for original disability compensation claims or claims for increased evaluation are sufficient if a request for a TDIU evaluation is introduced. A separate notice letter for a TDIU evaluation is no longer required. If a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, or other submission expressly requests TDIU, this will be considered a claim for increased evaluation in all service-connected disabilities unless TDIU is expressly claimed as being due to one or more specific disabilities. The initial notice letter will provide VCAA compliant information for all service-connected disabilities that are not currently evaluated at the schedular maximum evaluation for that condition.
The principle of staged ratings may be applied in considering the effective date for a TDIU evaluation as either part of the initial disability evaluation or as part of a claim for increase. See Fenderson v. West, 12 Vet.App. 119 (1999); Hart v. Mansfield, 21 Vet.App. 505
VA Forms 21-8940 and 21-4192
Notwithstanding any favorable medical evidence or opinion indicating that the Veteran is unemployable due to service-connected disabilities, a TDIU evaluation may not be granted if the evidence otherwise shows that the Veteran is engaged in, or capable of being engaged in, gainful employment. Accordingly, a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, should still be forwarded to the Veteran if a request for a TDIU evaluation is expressly raised by the Veteran or reasonably raised by the evidence of record.
The VA Form 21-8940 remains an important vehicle for developing the claim and determining entitlement to a TDIU evaluation. However, the determination of an effective date for the establishment of a TDIU evaluation is no longer primarily based upon the date of receipt of the VAF 21-8940, but upon consideration of other factors such as the date of the original claim or claim for increase and the date that the evidence establishes inability to maintain substantially gainful employment due to service-connected disability(ies).
Once the VA Form 21-8940 is received and former employers are identified, then VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, will be forwarded to the former employers listed on the form. The VA Form 21-4192 requests that the employer provide information about the Veteran’s job duties, on-the-job concessions, date of and reason for job termination, etc. A TDIU evaluation should not be denied solely because an employer failed to return a completed VA Form 21-4192.
The VA Form 21-8940, while still important as a development tool, is not required to render a decision concerning whether or not to assign a TDIU evaluation. A decision concerning entitlement to a TDIU evaluation may be rendered without a completed VA Form 21-8940 of record, based on the entire body of evidence available.
VA examinations are generally undertaken in conjunction with original disability compensation claims and claims for increase in accordance with VA’s statutory duty to assist a Veteran in developing his/her claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In such claims, if a request for a TDIU evaluation is expressly raised by the Veteran or reasonably raised by the evidence of record, a general medical examination is to be scheduled. Specialty examinations (Eye, Audio, Mental, Traumatic Brain Injury, and Dental) may also need to be scheduled. These specialty examinations are only to be ordered when the Veteran is service connected for an eye, audio, mental, or dental condition that is not already at the schedular maximum, even if this condition is not one that the Veteran is claiming as causing his or her unemployability. Additionally, the examiner should be requested to provide an opinion as to whether or not the Veteran’s service-connected disability(ies) render him or her unable to secure and maintain substantially gainful employment, to include describing the disabilities’ functional impairment and how that impairment impacts on physical and sedentary employment.
In applying the Court’s holding in Bradley, if the medical evidence is insufficient to render an adjudicative determination as to whether the Veteran’s TDIU entitlement solely originates from a single service-connected disability, and there is potential entitlement to SMC at the (s) rate, the VA examination should also include an opinion as to what disability or disabilities render the Veteran unable to secure and maintain substantially gainful employment.
Other TDIU Development Considerations
If the evidence indicates that the Veteran has been seen by the Vocational Rehabilitation and Employment Service (VR&E) or has applied for disability benefits from the Social Security Administration (SSA), these records, to include any decisions and supporting documentation, must be obtained.
The Rating Decision
Although TDIU is no longer a freestanding claim, the determination of entitlement to a TDIU evaluation, raised as part of an original claim or claim for increased evaluation, must still be disposed of as a separate issue in the rating decision.
In assigning the effective date for a TDIU evaluation, the regulations concerning effective dates for original claims and claims for increase – 38 C.F.R. §§ 3.400(b)(2) or (o) – will be applied. Also, when a TDIU evaluation is assigned, the evidentiary record should be carefully reviewed to determine the applicability of 38 C.F.R. § 3.156(b), whether as part of an initial disability rating or as part of a claim for increase. 38 C.F.R. § 3.157 may be applicable in claims for increased evaluation that also raise a request for a TDIU evaluation. (For further guidance, see our Decision Assessment Document in Rice v. Shinseki, May 6, 2009).
In compliance with the Bradley holding, if TDIU is granted, a determination must also be rendered as to what specific service-connected disability(ies) render the Veteran unemployable. Generally, there would have to be clear and substantial evidence to show that unemployability is caused by a single disability when there are multiple service- connected disabilities. In original disability claims, where service connection is not established for any disability, the issue of entitlement to a TDIU evaluation is rendered moot, unless specifically claimed.
When establishing an end product for TDIU, it will be adjudicated as part of the initial disability rating or as part of a claim for increase. If a claim for TDIU is received after development has been initiated, to include VCAA notification, and a determination of entitlement to service connection for the disability upon which TDIU is based is still pending or has not been found, adjudicate the TDIU issue under the existing end product.
In situations where TDIU is inferred and additional evidence is needed, rate all other claimed issues that can be decided before rending a decision on TDIU entitlement. Show the issue of potential TDIU entitlement as deferred in the rating decision. Develop the inferred TDIU issue under the existing or appropriate end product, which will remain pending. Send the Veteran a VA Form 21-8940 to complete and return. Every inferred TDIU request that is deferred for additional evidence must be resolved by a formal rating decision after the evidence is received or the notification period expires. See Fast Letter 08-06 (February 27, 2008).
Whenever a rating decision grants TDIU and establishes permanency, it must include the statement, “Basic eligibility under 38 U.S.C. Chapter 35 is established from [date].” This statement is required regardless of whether or not there are potential dependents.
Continuing Requirements for the TDIU Award
As inability to maintain substantially gainful employment constitutes the basic criteria that must be satisfied for a TDIU evaluation, after the initial TDIU grant is awarded, VA must continue to ensure that the Veteran is unemployable.
Therefore, the Veteran must complete and return a VA Form 21-4140, Employment Questionnaire, annually for as long as the TDIU evaluation is in effect. Yearly submission of the form is required unless the Veteran is 70 years of age or older, or has been in receipt of a TDIU evaluation for a period of 20 or more consecutive years (See 38 C.F.R. § 3.951(b)), or has been granted a 100-percent schedular evaluation. The form is sent out annually to the Veteran from the Hines Information Technology Center and must be returned to the regional office. It requests that the Veteran report any employment for the past twelve months or certify that no employment has occurred during this period. The VA Form 21-4140 must be returned within 60 days or the Veteran’s benefits may be reduced. If the form is returned in a timely manner and shows no employment, then the TDIU evaluation will continue uninterrupted. The VA Form 21-4140 must be returned with the Veteran’s signature certifying employment status. A telephone call to the Veteran is not acceptable to certify employment status for TDIU claims.
If the VA Form 21-4140 is timely returned and shows that the Veteran has engaged in employment, VA must determine if the employment is marginal or substantially gainful employment. If the employment is marginal, then TDIU benefits will continue uninterrupted. If the employment is substantially gainful, then VA must consider discontinuing the TDIU evaluation. 38 C.F.R. § 3.343(c)(1) and (2) provide that actual employability must be shown by clear and convincing evidence before the benefit is discontinued. Neither vocational rehabilitation activities nor other therapeutic or rehabilitative pursuits will be considered evidence of renewed employability unless the Veteran’s medical condition shows marked improvement. Additionally, if the evidence shows that the Veteran actually is engaged in a substantially gainful occupation, the TDIU evaluation cannot be discontinued unless the Veteran maintains the gainful occupation for a period of 12 consecutive months. See 38 C.F.R. § 3.343(c).
Once this period of sustained employment has been maintained, the Veteran must be provided with due process before the benefit is actually discontinued, as stated at 38 C.F.R.
§§ 3.105(e) and 3.501(e)(2). This consists of providing the Veteran with a rating that
• Proposes to discontinue the IU benefit
• Explains the reason for the discontinuance
• States the effective date of the discontinuance, and
• States that the Veteran has 60 days to respond with evidence showing why the discontinuance should not take place.
If the TDIU evaluation is discontinued, the effective date of the discontinuance will be the last day of the month following 60 days from the date the Veteran is notified of the final rating decision. If the VA Form 21-4140 is not returned within the 60 days specified on the form, then the regional office must initiate action to discontinue the TDIU evaluation pursuant to 38 C.F.R. § 3.652(a). Due process must also be provided with a rating decision that proposes to discontinue the TDIU benefit for failure to return the form. If a response is not received within 60 days, then the TDIU evaluation will be discontinued and a rating decision will be sent to the Veteran providing notice of the discontinuance. The effective date of discontinuance will be the date specified in the rating decision which proposed discontinuance, as described above, or the day following the date of last payment of the TDIU benefit, as specified at § 3.501(f), whichever is later. The Veteran must also be notified that if the form is returned within one year and shows continued unemployability, then the TDIU evaluation may be restored from the date of discontinuance.
VA may also use the income verification match (IVM) to verify continued unemployability. The IVM is a method of comparing a TDIU recipient’s earned income, as reported to VA by other federal agencies, with the earned income limits that define marginal employment. If income reports show significant earned income above the poverty threshold, the regional office must undertake development to determine if the Veteran is still unemployable. IVM information does not meet the requirements for a completed VA Form 21-4140 for the purpose of continuing TDIU benefits. A completed VA Form 21-4140 still must be provided by the Veteran for continuation of TDIU benefits.
Another method of monitoring unemployability status among TDIU recipients is through the VA Fiduciary Activity. This service conducts field examinations when it has been notified that a TDIU recipient might be pursuing a substantially gainful occupation. If the field examiner finds evidence of employment or if the Veteran is unwilling to cooperate with the examiner, then the examiner will forward this information to the Rating Activity. A decision must then be made as to whether the TDIU evaluation will be discontinued.
The regulatory requirements listed above will be applied to the determination.
As an exception to the aforementioned procedures; if the veteran has certified no employment status in a VA Form 21-4140 and VA obtains credible information indicating that the veteran has engaged in gainful employment, continued entitlement to TDIU benefits may be terminated on the basis of fraud. The due process provisions of § 3.105(e) must still be followed. However, if a finding of fraud is confirmed, the effective date of termination of TDIU benefits will be the day preceding the date that VA received the veteran’s VA Form 21-4140 that fraudulently certified continuation of no employment status. See 38 C.F.R. § 3.500(k). Scenarios
Below are several factual scenarios intended to illustrate how claims involving requests for TDIU evaluations should be developed and rated, as well as the appropriate regulations to be applied in determining the effective date of the TDIU evaluation.
(1) A Veteran files a claim for service connection for PTSD in January 1999. The RO grants service connection in November 1999 with a 50-percent evaluation. The Veteran files a Notice of Disagreement (NOD) with the evaluation and submits a VAF 21-8940 in February 2000 indicating that he has been unable to work due to PTSD. The RO, in September 2000, grants a 70-percent evaluation for PTSD from January 1999 and also assigns a TDIU evaluation effective January 1999.
In this scenario, the TDIU evaluation is considered as part of the initial disability rating, not a freestanding TDIU claim. 38 C.F.R. § 3.156(b) is applicable as the
Veteran had submitted evidence of unemployability within the appeal period and 38
C.F.R. § 3.400(b)(2) will be applied in determining the effective date of the TDIU evaluation.
(2) The Veteran has been service connected for several disabilities, to include migraine headaches, since 2001. In March 2006, he/she submits a claim for increased evaluation for migraine headaches, rated 10-percent disabling at the time, stating that the frequency and severity of his migraine headaches have worsened. The RO issues a decision in December 2006 granting a 50-percent evaluation from March 2006. His/her combined disability evaluation is also increased to 70 percent. The Veteran timely files an NOD in response to the evaluation assigned for migraine headaches and appears before a Decision Review Officer (DRO) in an informal conference. He/she submits a VAF 21-8940, additional medical evidence, and a letter from his/her employer indicating that the Veteran was unable to continue working because he/she missed too much time because of his/her migraine headaches and last worked in March 2006. The DRO, in February 2007, grants a TDIU evaluation effective March 2006.
In this scenario, the TDIU evaluation is considered as part of the claim for increased compensation. 38 C.F.R. § 3.156(b) is applicable as the Veteran had submitted evidence within the appeal period and 38 C.F.R. § 3.400(o) will be applied in determining the effective date. The effective date for the TDIU evaluation will be based upon the date it is factually ascertainable that the Veteran was unable to maintain substantially gainful employment due to his service- connected disability(ies), to include up to one year prior to the date of the March 2006 claim for increased evaluation under § 3.400(o)(2).
(3) The Veteran is service connected for post traumatic stress disorder (PTSD), rated 50-percent disabling; arthritis of the knees, each rated 10-percent disabling; and several other disabilities that have been assigned noncompensable evaluations. He files a claim for increased evaluation for PTSD, stating that the condition has worsened and that he had to discontinue working due to problems associated with the condition. He submits medical evidence and identifies VA medical records that only concern treatment for PTSD and show difficulty in maintaining employment due to the mental disorder.
A VCAA notice for the PTSD evaluation and TDIU and a VA Form 21-8940 should be forwarded to the Veteran. The notice should not refer to the other service-connected disabilities, as the Veteran specifically indicated that only PTSD has rendered him unemployable. A general medical examination with a special psychiatric examination for PTSD is to be requested. The VA examiner should be requested to render an opinion concerning the effect of PTSD on employability as a request for a TDIU evaluation has been reasonably raised by the Veteran and the evidence of record.
(4) The Veteran has been service connected for ankylosing spondylitis, rated 60-percent disabling; eczema, rated 30-percent disabling; and hiatal hernia, rated 10-percent disabling, since 2003. In January 2007, he submits a statement indicating that he cannot work due to his service-connected disabilities.
In this scenario, the correct course of action is to send the Veteran a VCAA notice for claims for increased evaluation that pertain to all service-connected disabilities not currently at the schedular maximum evaluation, as the Veteran did not specifically state what service-connected disability(ies) affects his employability.
The Veteran should be scheduled for a general medical examination that also includes an opinion as to whether or not the service-connected disability(ies) render the Veteran unable to secure and maintain substantially gainful employment.
This Training Letter rescinds Training Letter 07-01 (February 21, 2007). M21-MR,
IV.ii.2.F will be revised in accordance with this Training Letter. WHO TO CONTACT FOR HELP
Questions should be e-mailed to VAVBAWAS/CO/21Q&A.
Thomas J. Murphy Director
Compensation and Pension Service
The goal for many veterans is to get to a 100 percent disability rating, but this is not always possible through the rating schedule due to an individual’s particular conditions. But, there is another way to be awarded a 100 percent rating: total disability based on individual unemployability (TDIU). Under 38 C.F.R. s. 4.16, a total disability rating may be assigned if a person who fails to meet the schedular rating is, nevertheless, unable to obtain and maintain a substantially gainful occupation. TDIU is not a separate claim for benefits, but is instead part of the rating process. During the VA benefits process, a veteran is assumed to be seeking the highest benefit allowable, so if facts exist in the record that indicate the veteran is unemployable, the VA is obligated to consider and adjudicate TDIU. Note that this does not always happen, so it is in the veteran’s best interest to begin the TDIU process by submitting VA Form 21-8940 or submitting an informal claim for TDIU in a signed and dated letter or Form 21-4138 (Statement in Support of Claim). If the veteran does the latter, the VA will ask the veteran to complete and submit VA Form 21-8940, which is the formal application for total disability based on individual unemployability. The fact that TDIU claims can be raised by the record, but the VA also requires the submission of Form 8940 complicates the process of determining the correct effective date for TDIU, which is discussed below.
TDIU is an individualized determination that is made in the context of an individual veteran’s capabilities, whether or not an average person would be able to secure substantially gainful employment under the same conditions. Also note that the availability of work in the national or local economy is irrelevant to the consideration of TDIU, and the VA may also not consider the veteran’s age or any non-service-connected disabilities. When making a determination of TDIU, the VA will consider factors such as the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran’s employment history and current employment status, the veteran’s educational history, and the veteran’s annual income from employment, if any. Standing alone, the fact that a veteran may be young or highly educated, or may have been recently employed with a long work career, is not a sufficient justification for a denial of TDIU. The VA is obligated to consider the totality of the circumstances regarding the veteran’s service-connected disabilities and inability to secure and maintain substantially gainful employment, keeping in mind the benefit of the doubt doctrine. If the veteran is taking medication to treat the service-connected disability, the VA should also make an assessment of the effects or side effects of the medication on the veteran’s employability. In addition, if the VA is put on notice that a veteran is receiving Social Security Administration benefits, it is obligated to obtain any relevant records.
The VA should schedule a general medical exam if a veteran expressly asks for a TDIU evaluation or the issue of TDIU is raised in the record. During the exam, the examiner will be asked to provide an opinion as to whether or not it is at least as likely as not that the veteran’s service-connected disability or combined disabilities make him or her unable to secure and maintain substantially gainful employment. The examiner must describe the disabilities’ functional impairment and how that impairment affects both physical and sedentary employment. See Part Three for more C&P exam tips.
TDIU TWO-STEP ANALYSIS
There is a two-step analysis for determining whether a veteran qualifies for TDIU. First, the veteran’s service-connected disabilities must satisfy certain percentage rating requirements under the rating schedule. Second, the veteran must be unable to secure substantially gainful employment due to his or her service-connected disabilities.
For the first step of the analysis, the veteran must have one service-connected disability that is rated at 60 percent or higher, or a combined disability rating of 70 percent, with one of the service-connected disabilities rated at least 40 percent. Note that for the combined disability calculation, certain disabilities are rated together, for example, disabilities that stem from the same accident or that are all part of the same body system.
It is also theoretically possible for a veteran who does not meet either the 60 percent or 70/40 percent requirement to qualify for extraschedular TDIU, although this is a difficult hurdle. For some veterans, they may not meet the percentage requirements, but the nature of their service-connected disability is such that they are not able to secure substantially gainful employment. For example, a veteran may suffer from debilitating migraines, which only have a maximum disability rating of 50 percent, but because the veteran must call in sick to work regularly, he is unable to keep a job. This veteran may want to argue that he should be receiving TDIU on an extraschedular basis. His case will be referred by the regional office to the VA Central Office in Washington, DC, where it will be reviewed by the Director of Compensation and Pension. The referral by the regional office must include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and other factors bearing on the issue, which will usually take the regional office a long time to gather and send along.
The second element of proving TDIU is that the veteran is unable to maintain substantially gainful employment due to his or her service-connected disabilities. Again, note that non-service-connected disabilities are irrelevant in the determination of TDIU. It is important for the veteran to emphasize that it is his or her service-connected disabilities in particular which are causing his or her inability to maintain substantially gainful employment.
What is substantially gainful employment? In simplest terms, substantially gainful employment is employment that is not marginal. Marginal employment means that a person’s earned annual income is less than or equal to the poverty threshold for one person as established by the United States Department of Commerce, Bureau of the Census. Sometimes it is possible for a veteran to earn more than the poverty threshold and still qualify for TDIU. For example, if he or she works in a sheltered environment such as a family business or if he or she is provided accommodations or leniencies by his or her employer on account of service-connected disabilities, such as excessive time off or the ability to leave work at will, that may be considered a sheltered work environment. If a veteran is working, whether in a sheltered environment or in less than substantially gainful employment, the VA will evaluate whether the fact that the veteran is employed is proof of the fact that he or she has the ability to find and secure substantially gainful employment. Therefore, it is important to make clear that while the veteran may be currently employed, he or she does not have the ability to perform work with reasonable consistency and for a reasonable time due to his or her service-connected disabilities. The best evidence for a TDIU determination is a professional opinion from a vocational expert or competent medical doctor stating the due to his or her service-connected disabilities, the veteran is unable to secure substantially gainful employment.
Perhaps the most complicated issue relating to TDIU is the effective date. Because TDIU is not a separate claim, but part of the rating process, it can be difficult to figure out when the award of TDIU should begin, and this is often something that the VA gets wrong. In simplest terms, to determine the effective date for TDIU you must first figure out the date on which the VA first received evidence from some source which indicates that the veteran was unemployable. This could be a letter from a doctor or a notation in medical records which states that the veteran is unable to work due to his or her service-connected disability. Second, you must determine the status of the veteran’s disabilities at the time the VA received this evidence.
There are three main ways to answer the second question. The first possibility is that the VA first received evidence of the veteran’s unemployability when he or she filed a claim for service-connection or when the VA was considering whether to grant service connection. If the VA eventually grants service-connection for the veteran’s disability and awards TDIU, the effective date for the TDIU would be the date the VA received the claim for service connection or the date the veteran first became unemployable due to his or her service-connected disabilities, whichever is later.
If the VA first received evidence of the veteran’s unemployability after the VA granted service connection, but before the VA made a final decision on the rating for the disability, the effective date for an award of TDIU would be the date the VA received the claim for service connection or the date the veteran first became unemployable due to his or her service-connected disabilities, whichever is later.
And finally, if the VA first received evidence of the veteran’s unemployability when he or she filed a claim for an increased disability rating or while a claim for an increased disability rating is pending, the effective date for an award of TDIU would be the date the VA received the claim for an increase in disability rating or the date the veteran first became unemployable due to his or her service-connected disability ratings, whichever is later.
As you can see, this can be a tricky determination to make, so it is always important to analyze the effective date set by the VA to see whether they got it right.
AFTER A TDIU DECISION
If TDIU is denied or the wrong effective date is assigned, the veteran can appeal the decision in the same manner as any other rating decision by filing a Notice of Disagreement (NOD) within one year of the date on the letter that accompanied the TDIU decision. If the veteran fails to file a NOD within one year, the decision becomes final and can only be reopened by submitting new and material evidence or by demonstrating that the decision was the product of clear and unmistakable error.
When a veteran is awarded a total disability rating based on TDIU, the VA may not reduce the benefits unless there is clear and convincing evidence that establishes that the veteran is capable of actual employability. This is a high burden for the VA to meet. Even if a veteran’s disability has materially improved, if the VA cannot prove by clear and convincing evidence that he or she is able to engage in substantially gainful employment, TDIU must be preserved. In addition, if a veteran’s disabilities improve and he or she decides to return to work, his or her TDIU benefits will continue for a year until they are terminated.
Before the VA reduces a disability rating, including TDIU, it must provide a notice of proposed reduction and give the veteran 60 days to submit evidence to show that his or her condition has not improved. The veteran also has the opportunity to request a hearing. It is also likely that the VA will request that the veteran report for a re-examination. An examination that is the basis for a reduction must be even more thorough than the examination that established the current rating or TDIU (see Part Three). The VA must review all the new evidence, including the re-examination report, in the context of all of the evidence in the record in order to reach a new decision on TDIU.